Caption: In Lockport, New York, hanging judges like Raymond Schilling and clue-less Thomas DiMillo, men who neither know common law nor fundamental justice, sentence citizens to jail for not cleaning up garbage or having the wrong kind of sign on their property, without a jury trial. (Above) A pile of debris at the former Peters Dry Cleaning at 316 Willow led Judge DiMillo to sentence then-owner Patrick McFall to a seven month jail sentence. McFall wanted to clean it himself, but the city demanded he hire a company for $58,000 to clean up the trash. Photo by Lockport Union Sun And Journal

Lockport businessman Patrick McFall has filed an official complaint with the New York State Judicial Conduct Commission against City Court Judge Thomas M. DiMillo, and he says he won’t be satisfied until DiMillo is removed from the bench.

DiMillo sentenced McFall to seven months in jail on June 13 for violating a city building code, after finding him guilty in a non-jury trial of failing to clear a debris pile at his 316 Willow St. property in timely fashion. The debris pile was formed Dec. 15 when a portion of the old building collapsed.

Late last week, DiMillo reversed his own decision, freeing McFall after seven days behind bars. The judge said he was persuaded by the appeal presented by McFall’s attorney, Jon Ross Wilson, who argued state and federal law guarantee the right to a jury trial by anyone facing a "serious" criminal penalty of high fines or more than six months in jail. The court should have offered McFall the chance, in writing, to accept or waive a jury trial, Wilson told the court.

"My inclination is the (vacate conviction) motion should be granted," DiMillo said after reviewing the law that almost every judge in America knows.

Setting aside the conviction is not enough for McFall.

“I want the judge thrown off the bench,” he said. “He has repeatedly berated me, trying to damage my reputation in the community, knowing that his remarks would be printed in the newspaper.”

McFall, who owns a number of properties in Lockport, said his problems stem from a mutual dislike between him and Mayor Michael Tucker.

Judge DiMillo was appointed by Mayor Tucker in 2005 and is aware of the fact that McFall has criticized the man who made him judge.

Repeated calls to Mayor Tucker went unreturned. We would have liked to ask him why he injected himself into what remains a minor criminal case through comments to the media.

McFall who owns several properties in Lockport tells the story as though he can hardly believe it himself.
“The (inspectors) have only been able to get me into court two times, but I’ve lost track of how many times they have threatened me over the years,” he said. “The long and the short of it is that I was there with a crew, trying to clean it up on the day the building collapsed,” McFall said. “They wouldn’t let me clean it up."

Officials from the city Inspections Dept. said McFall was required to have an environmental impact assessment performed on the wrecked building. The inspection turned up four window frames that had been caulked with a substance that contained asbestos.

The building, which housed a dry cleaning establishment, sits in the middle of a zoned residential neighborhood. It was allowed to remain in business under a grandfather clause because it had been there before the zoning ordinance was enacted.

The point was crucial because the owner of a residentially-zoned structure is allowed to undertake asbestos remediation privately, whereas owners of commercial structures are required to bring in certified professionals.

What would have taken McFall at most an hour or two to clear away had suddenly become a $58,000 job.

He went to the Zoning Board and argued that, since the building didn’t exist anymore, it couldn’t be commercial and asked that the property be allowed to revert to residential zoning, but he was turned down.

The case is not dissimilar to that of Town of Lockport businessman, David Mongielo, who is facing a 15-day jail term over a sign law violation and was the subject of a three-part Reporter investigative series earlier this month.
Mongielo sat in on McFall's sentencing hearing to offer moral support. "It's communism in America!" he declared after hearing the sentence.

McFall called the day of his sentencing one of the worst days of his life. He has sole custody of his 17-year-old daughter, Casey, who was in the courtroom when DiMillo ordered McFall directly to jail.

“My daughter was there and just broke down. She became very upset," he said.

The distraught father said he missed his daughter’s final dance recital, and was afraid he’d miss her high school graduation Saturday night. Fortunately, he was able to make the big event.

The sheriff’s department personnel manning the Niagara County Jail, McFall said, were sympathetic.

“I sat there for two hours while they tried to figure out what charge they could put on the form that I was being jailed under,” McFall said. “They knew that what happened wasn’t right.”

In what passes for the criminal justice system in Lockport and all of Niagara County, defendants facing felony drug charges are routinely let go with shorter jail sentences than that received by McFall.
City Prosecutor Matthew Brooks defended the harsh treatment. 

"This case seems more egregious in a lot of ways," Brooks said. "In the history of neglect of the property, in the fact it's in the heart of a residential area, and, frankly, in (McFall's) demeanor. He was even quoted in the paper at one point as saying he'd let the city take it down and then sue the city. It's contempt."

Brooks said he's ready to prosecute McFall all over again.

"Clearly the judge believes he made a mistake. It's a technicality, but if the rule requires a defendant to be advised in writing, it may be a valid technicality," Brooks said. "The city proved its case beyond reasonable doubt; and if we have to do it again, we'll do it again."

Wilson said potential legal issues including double jeopardy are being researched, and added that there’s also the possibility that McFall can’t be prosecuted again because he’s no longer the owner of 316 Willow property, having sold it on June 7.
Strangely, Mayor Tucker also went to the media with negative comments concerning the property transfer. Combined with his previous remarks about McFall’s criminal case, the statements indicate an unusually high degree of interest by Tucker.

One thing’s for certain. If there is a second trial in the matter of City of Lockport vs. Patrick McFall, the defendant will be judged by a jury of his peers rather than a judge who may or may not have some political debt to repay. It will be hard to find 12 citizens, not having a grudge against the defendent, to unanimously agree to put a man in jail for not spending $58,000 to pick up debris that he could probably remove safely for $2,000.